Great British Railways is coming: access to an integrated railway

With the Railways Bill (the Bill) currently completing its journey through Parliament, Great British Railways (GBR) is coming – and fast. Aspirations to stand up GBR during the course of 2027 seem realistic. With work continuing apace, 9 September saw the launch of a consultation on one of the eagerly-awaited components of the new GBR model: the Access and Use Policy (AUP). The AUP does not yet form agreed policy, and is being issued as a consultation draft.

Network Rail (NR) is undertaking the consultation on the AUP, having been commissioned by the Department for Transport (DfT) to do so. As one of the “twin engines” of GBR, along with DfT Operator (DFTO), which owns the renationalised train operators, NR has the expertise to do so.

The deadline for responding to the consultation is 11.59pm on 2 December 2026. So there is time – but not a lot of time given the volume of material involved! Stakeholders will need to have their own twin engines operating on full blast to review and provide feedback in good time.

In the new GBR world, NR and DFTO will be integrated, and you do not need a contract to grant yourself access to something you already own and operate. But in a world where there are other non-GBR users of the railway – freight, open access operator and concessions such as those procured by Merseytravel and Transport for London – clarity is needed. And with that clarity comes a degree of complexity, even though the overall intention is to simplify access to the railway network. We have written previously about some of the challenges GBR will face when it comes to capacity allocation and charging and ensuring that GBR takes decisions fairly, taking into account all users of the railway and not just its own operations. You can find some of those previous thoughts here and here.

So what can we learn from the AUP about how GBR intends to operate, and the proposed relationship with both its own train operators and the wider industry?
  

Consultation – not just the AUP

Whilst the headline – and the focus of this insight – is the AUP itself, it is worth noting that NR has also published the following documents for consultation:

• GBR Code – which replaces the current Network Rail Network Code;

• Model Track Access Contracts, with separate versions for publicly-specified, open access, freight and charter services;

• GBR Station Code – which replace the current Station Access Conditions;

• Station-specific annexes, and model station access agreements for passenger, freight, charter and diversionary services;

• GBR Depot Code – which replaces the current Depot Access Conditions;

• Model Depot Access Agreements for train operators and non-train operators;

• Capacity Plan and Commitments Register, which are integral to the operation of the new system for capacity allocation.

Stakeholders need to consider the consultation documents as a whole, as the documents form part of the suite of access arrangements under the GBR model. This insight is intended to provide an overview of some of the key areas set out in the AUP. The AUP is 80 pages and in the interests of keeping this insight manageable, we have necessarily been selective in the areas covered, whilst intending to offer a helpful overview of the AUP.
 

Fundamentals of access

The AUP has been prepared with the intention of consistency with GBR’s statutory duties set out in the Bill, which is currently concluding the Parliamentary process and is expected to become law later this year. Themes covered by the AUP include some of the fundamentals for gaining access to the network and operating a service:

• Capacity allocation: put simply, there is limited capacity on the railway, and how GBR will decide how that capacity is best used, and by whom, is key. New concepts of the Capacity Plan and Capacity Commitments are anticipated, and we consider those in more detail below.

• Terms of access: once a decision has been made to grant capacity, the next question is on what basis that capacity will be granted, and how all stakeholders are brought together to use the same processes to deliver that capacity. These points are covered by some of the documents, other than the AUP, which NR is consulting on.

• Charging and performance: How users contribute to the cost of operating the network – and how they are incentivised to run their services reliably and without impacting other users – is an essential function. Whilst charging will matter less to GBR operators, ensuring those GBR operators pay their fair share will be key to non-GBR users, so they are not shouldering costs disproportionately. Of course, all users – whether GBR operator or not – can have a performance impact, so incentives are key.

These fundamentals become increasingly important in an integrated railway where some users will be outside of the GBR bubble. Until now, the law has required the separation of infrastructure management (currently undertaken by NR) and train operations. There are many perceived benefits of bringing together decisions on track and train through the creation of GBR and bringing together those “twin engines”. This new approach will change the current operating model, and the law itself.
 

Capacity allocation

GBR will be the directing mind for the railway, and so decisions will need to balance competing priorities and demands. GBR will need to make choices about how capacity is best used. Positively, the AUP commits GBR to applying the same framework to investment and service options from planning to delivery stage – and that will be consistent across all users of the railway. The AUP proposes to ensure decisions are made progressively – and early enough – to support investments being made and to provide a credible route to ensure plans can be operated. This is at the same time as ensuring sufficient flexibility remains to optimise services and solve practical problems.

The Capacity Plan and Capacity Commitments form a core part of the proposal:

• Capacity Plan: This will set out GBR’s view of how to make best use of capacity over time, and is the baseline against which future potential service changes are assessed. The Capacity Plan will be enduring, will not be for a specific period, and will cover the entire railway. The AUP envisages minor and major updates being made to the Capacity Plan: major updates are where capacity choices need to be considered together or are otherwise strategic or complex – and all updates, whether minor or major, will be consulted upon. There is considerable detail in the AUP about how this will be undertaken, which we have not covered in this insight. Capacity will be classified by potential uses, including GBR, non-GBR (publicly specified), non-GBR (private) and freight services. Routeing, timing and relevant operating characteristics will also be set out, as will “capacity priorities”. Capacity priorities are GBR’s strategic direction for future decisions on capacity, and therefore this is an essential aspect for stakeholders to keep under review. What those initial capacity priorities are is not yet clear, although the AUP indicates that GBR intends to adopt an evidence-based approach to how the railway should be used over time, drawing on aspirations through the long term planning processes, which will be aligned with GBR’s five-year funding periods.

• Capacity Commitments: As the name suggests, a capacity commitment is an agreement from GBR that a particular operator, including GBR itself, has capacity on the railway network. It is akin to “firm rights” or “contingent rights” or “relief rights” (for specific events) under current track access contracts and the description in the AUP will already be familiar to those involved in access planning and timetabling from the current model. For non-GBR operators, capacity commitments will continue to be granted by GBR by way of a track access contract, albeit that contract will no longer need approval from the regulator, the Office of Rail and Road (ORR). Interestingly, the AUP envisages that capacity commitments could be held by a public body, such as a devolved transport authority, in future, and then delegated to a train operator. This seems sensible. For GBR operators, capacity commitments will be similar in form and will be recorded in the Capacity Register. The grant of a capacity commitment necessarily has an impact on the Capacity Plan, which will be updated accordingly. In making decisions on capacity, wherever relevant GBR must have regard to the explicit statutory duty set out in the Bill to retain sufficient capacity for GBR-operated services and for engineering work, as well as the other general statutory duties included in the Bill. The AUP acknowledges that this will give GBR significant discretion in many cases. As capacity commitments are the product being sold – or retained – by GBR, we speak a little more about them below.

Timetabling decisions will then be taken by GBR in accordance with the capacity commitments it has granted. Timetabling is retained in Part D of the GBR Code, and has many overlaps with the current timetabling process that readers will be familiar with.
 

Criteria for making decisions

The Bill requires GBR to set out the criteria and considerations it will take into account when making decisions on capacity commitments and competing demands for capacity. The AUP sets out 29 criteria, all of which, on the face of it, seem reasonable in one way or other. Pausing briefly, such a long list will inevitably give GBR considerable flexibility when making decisions, as no one criteria takes precedence. In effect, this long list facilitates all manner of decisions being made by GBR, which will be justifiable by reference to one or other criteria, and therefore will make an appeal against a GBR decision more tricky. Whilst decision letters and rationales will be published by GBR, which may facilitate an appeal, the grounds on which an appeal may be made, and on which an appeal may be successful, will be far more limited than under the current system.

In the interests of space and reader patience, we don’t simply list all of the criteria in this insight, although a few that stood out to us include:

• Government/Mayoral authority/devolved government strategies: “particularly high” regard – and commensurately higher weight – will be had to these strategies, which will naturally change from time to time. Whilst giving flexibility to GBR, with the apparent current government hostility towards open access, this could be troubling for some, and of course raises the possibility of the government, rather than GBR, being the directing mind for the industry. It is positive to see recognition of devolution, which is becoming increasingly important, playing out in the AUP.

• Ranges of journeys and needs of those travelling: criteria include the purposes of journeys, which goes to the mix of services using the network and associated characteristics such as timings, stopping patters and frequencies. The quality of journeys is also referred to, which could go to crowding and the need for engineering work. Recognising the interests of disabled persons is also essential to ensure all customers are able to use the railway network.

• Rail freight: linked in with the recent publication of the Rail Freight Growth target, criteria include providing “appropriate” access for “existing” (but not new) rail freight customers and shippers, as well as recognising that freight demand may change at relatively short notice.

• Process and investment: interestingly, process burdens being proportionate is one of the criteria. Today, some of the capacity allocation processes operated by NR, including for relatively minor changes, can seem unduly disproportionate, and so this is a promising improvement. Supporting investment by both GBR and other service providers, and how that might drive improvements in line with long term plans is also noteworthy. The role that third party investors may play in that investment feeds in here, and more on this is discussed below.

• Public funding: the overall impact on public funds plays a central role. This is clearly important – although always has been through NR funding cycles and, more recently, budgets made available to train operators through their National Rail Contracts, and latterly, once in the public sector. With competing demands for limited public funds, this opens up the sector to those political funding decisions, and the impact this may have on available capacity. The supply chain should note the wider implications of this in particular.

Rightly, the AUP acknowledges that not all criteria will point in the same direction, and there may be differences between local and national priorities. The AUP indicates that GBR will seek to address differences through long term planning, and involving relevant stakeholders in the planning and decision-making processes. However, it is recognised that sometimes GBR will be expected to make the final decision, using the relevant statutory framework and the criteria set out in the AUP. Further, whilst GBR intends to place some weight on continuity of existing service provision, the AUP recognises this needs to be balanced against the need for change, and therefore does not protect existing uses indefinitely. Tellingly though, the AUP states continuity “does not require the continuation of a particular operator” which in a GBR operator-dominated world, has a sense of foreboding to it.
 

Capacity Commitments

Capacity commitments will be granted by way of a contract to non-GBR users, and then recorded in GBR’s new Capacity Register or, for GBR’s own services, will simply be recorded in that register following the conclusion of the relevant process.

Applications for a new capacity commitment, or to modify an existing capacity commitment, can be made at any time, although the AUP suggests that they should be made no more than 24 months in advance of operating that capacity. Capacity commitments will typically be granted for up to 7 years, but GBR will consider up to 15 years (which is the maximum envisaged) where additional assurance is needed to support delivery of the service and associated benefits, taking into account whether restricting future use of the railway is justified. Capacity will be capable of being held by any of the following and where the applicant is not GBR, a track access contract will be needed, or will need to be applied for in parallel:

• Publicly specified passenger services;

• Public passenger specifiers;

• Open access operators;

• Freight operators;

• Freight customers;

• Heritage and tourist services;

• Charter passenger services;

• Supply chain services to facilitate GBR engineering work.

Two types of application are envisaged:

• Type 1: the application matches an existing Capacity Plan classification, without any change being needed to the Capacity Plan. This will be particularly relevant where existing capacity comes to be renewed, or where there are established and accepted needs for incremental capacity which are already catered for.

• Type 2: the application requires a minor revision to the Capacity Plan. Either a change is needed to an existing classification included in the Capacity Plan or a new classification is required, including amending or offering a new capacity commitment.

The procedure is set out in detail in the AUP, but appears relatively similar in outline to existing capacity allocation processes. Of course, the ORR will not form part of the future process. If a major update is made to the Capacity Plan, an initial process may be needed where there is a high volume of requests for capacity commitments. Whilst the general process set out in the AUP will apply, in those circumstances GBR may specify a window for making applications to ensure a coordinated approach is adopted.

For both types of application, decisions will be made on the basis of deliverability of the actual service by the applicant within the expected timescales set out in the application. If there is more than one applicant for capacity in a Type 1 process, GBR will consider its capacity priorities and wider duties and considerations. For Type 2 processes, GBR will consider whether the application poses reasonable and manageable risks to the reliable, punctual, and safe operation of the railway, as well as undertaking a comparative assessment of whether the application would be a better use of the capacity.

It is proposed to treat GBR proposals for capacity in a similar way, although GBR’s capacity duty – reserving capacity for GBR’s own needs – will not apply where it is allocating capacity to its own operators. There is plenty more detail on capacity commitments in the AUP and a detailed review is encouraged, as this will be a new way of working.
 

Track, station and depot access

For non-GBR operators, a track access contract will still be needed – and as explained above, the template forms are part of this consultation process. Interestingly, the future track access contract appears to act like a framework agreement – all of the key terms are set out, but specific pieces of work or, in this case, capacity commitments, will not be. As the AUP says “Entering into a track access contract does not itself allocate specific railway capacity or guarantee permission to operate in specific timetable paths.” This means a separate process will be required to obtain the contract, and the AUP expects requests for station and depot contracts to be progressed at the same time. For new contracts though, the expectation is that the capacity commitment will be progressed concurrently, but separately. Any changes will be managed through the contractual variation process and, where appropriate, the processes set out in the GBR Code. Model contracts will be updated by GBR from time to time.
 

Charging for access

GBR will not be charging itself for access to its own network. But for non-GBR operators, there will be access charges, and measures are proposed to ensure there is transparency and fairness in how those charges are calculated and levied. Objectives from the charges scheme are:

• Enabling proportionate and sustainable cost recovery;

• Incentivising and aligning behaviours with infrastructure cost;

• Supporting planning and investment; and

• Incentivising and aligning behaviours with market development.

Some of the approach is consistent with today’s charging framework, where the basic premise is that operators are charged for the costs directly incurred as a result of that operator’s services, covering track wear and tear, traction electricity and service-specific staff costs. Under the AUP, this is to be known as the core charge, and the process to determine that charge will be applied consistently across all non-GBR operators. The core charge will apply for at least the whole of a particular GBR five-year funding period, unless there is a material change in circumstances caused by something outside of GBR’s reasonable control which undermines assumptions made when the core charge was set.

Above that “basic premise”, some operators today pay the fixed track access charge to recover NR’s other, non-directly-incurred, costs of providing the railway network. These include signalling and communications equipment costs, staff costs for non-service-specific staff, fixed assets and maintenance/renewal costs not linked to a specific operator’s services. The charges will be known as ancillary charges under the AUP, and again the intention is to set these charges for a 5-year GBR funding period, subject again to a re-opener for material changes.

There is not, as yet, a full list of ancillary charges, but these could include a contribution to the non-directly incurred costs of GBR, reservation/cancellation fees or discounts. Although presented as being new, this is actually remarkably consistent with the existing position and underlying law. A lump sum charge will be levied by GBR for devolved services, and devolved authorities will need to carefully consider the proposed principles and associated sums to ensure they are not placed in a worse position than at present.

For non-GBR operations which are not procured by devolved authorities, an “efficient operator assessment” will be applied. GBR will determine whether, and to what extent, a mark-up can be levied on those operators to contribute to GBR’s fixed costs. This is very similar to, if not the same as, the test applied by an infrastructure manager (with ORR approval) today for levying a mark-up above directly incurred costs.
 

Performance scheme

The Bill requires GBR to have a performance scheme designed to encourage GBR and users of the railway to minimise disruption on the railway network. Importantly, the Bill requires GBR not to provide for compensation for disruption caused by a train operator to its own services or for disruption outside of GBR’s control. GBR will also not be making payments to itself. Two types of disruption remain relevant: planned disruption, including for engineering work, and unplanned, on-the-day, disruption.

Again, there is plenty of detail about what GBR proposes to do and readers should take a look at that detail in the AUP. A few key points to consider are:

• What is within GBR’s control?: It is not yet clear how broad this definition will be. Principles for defining this include how able GBR is to prevent, manage or mitigate the disruption, and how quickly services can be restored. It is contemplated that only exceptional circumstances will be outside of GBR’s control – and what these are will be consulted on as part of the proposed performance scheme statement for a particular GBR Funding Period. Non-GBR operators will need to keep on top of this, as the more broadly this is defined, the greater risk that an operator will not be fully compensated for disruption.

• Consistent application: The scheme is intended to apply consistently across the network, although may vary between operators with materially different characteristics, such as freight and charter services.

• Planned disruption: For planned disruption, GBR will take into account reasonable needs for its own engineering work. This means that compensation may not always be available, as clearly maintenance and renewal works are essential. Where compensation is made available, non-GBR operators will receive short-term costs and short-term revenue losses arising from unreasonable levels of planned disruption. This is an interesting choice of words, as it means compensation may be less freely available than it is in the current NR system, and so may have a material impact on non-GBR businesses. Where compensation is available, it will always be on a “modelled” rather than “actuals” basis, which is narrower than at present where compensation depends on the type of planned disruption and “actuals” are available for more disruptive engineering work.

• Unplanned disruption: For unplanned disruption, GBR will also take into account reasonable levels of performance and network availability. Where compensation is payable, it will be on a modelled basis, with the intention of covering short-term costs and short-term revenue losses. This is relatively similar to the current regime. No compensation will be available above this – and so “sustained poor performance” currently available will fall away. The intention behind this is claimed to be to reduce administrative burden and claims processes, although we suspect the reality is to reduce GBR’s exposure to claims.

• Bespoke performance schemes: The AUP envisages that bespoke performance schemes may be available. This will only be where services are specified, funded or financially supported by a devolved government and GBR considers the standard regime would not adequately reflect the nature or effects of that funding arrangement. Specific principles are set out about how these might be developed, including ensuring there is no cross-subsidy, no discrimination between equivalent service types, and there being no impact on the standard performance scheme.

• Fixed scheme: Once implemented, the performance scheme will be fixed for the duration of a GBR funding period, unless there is a material change in circumstances, or to ensure the scheme “continues to reflect operational realities” (such as berthing offsets and major timetable changes). Whilst likely not intended, there does appear to be relatively broad scope for reopening the scheme in-life.
   

Third party investment

The AUP explains how GBR will help promoters identify and obtain assurances about capacity to support investment decisions. Investors are encouraged to engage with GBR as early as possible to share objectives, conditions and timescales for funding, with GBR considering how better outcomes for the railway will be achieved. Discussions will take place about what assurances are needed (and when they are needed) with the intention of reducing abortive time where proposals are either not appropriate or not deliverable. The long term planning process will be used to align investment proposals with the wider railway system.

The AUP is clear that investment incurred prior to GBR making a capacity allocation decision does not provide an entitlement to that capacity. This may mean that investment is stifled, as investors will want some certainty about the potential for capacity in order to put money into the development process. The AUP indicates that a development stage agreement, or heads of terms, could be used to mitigate any such concerns. In any event, actual capacity decisions will still need to follow the process for giving capacity commitments.
 

Concluding thoughts

A lot of thought has clearly been given to how GBR will operate, and what that means for access to the network. The AUP is a strong document, which reflects a lot of work. In many areas, the AUP reflects principles which are similar to, or slight evolutions of, the current industry position. In other areas, the changes are more radical, but reflective of both the integration of track and train in GBR, as well as governmental choices made in the Bill.

What is missing is how GBR will interface with other infrastructure managers, and how GBR’s proposals will impact services which cross boundaries. Presumably this will be separately shared in due course. Non-GBR operators will also need to carefully review the AUP and respond to the consultation, because these are the railway stakeholders who will be most impacted by the proposals. There are some particular areas, such as capacity allocation, charging and performance, which will need to be subject to much greater scrutiny.

As the “twin engines” of reform continue to push forward, and with GBR now in full view, the AUP gives a long-awaited preview of how GBR is likely to work in practice.